0120113822
04-12-2012
Marcia A. Lurensky, Complainant, v. Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission, Agency.
Marcia A. Lurensky,
Complainant,
v.
Jon Wellinghoff,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120113822
Agency No. EEO-10-ML001
DECISION
On January 18, 2011, Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated December 16, 2010, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor at the Agency's Office of Administrative Litigation (OAL) in Washington, DC.
On or about May 7, 2010, OAL moved to another building about two blocks away. On July 2, 2010, Complainant filed a formal complaint, as amended, alleging that the Agency subjected her to discrimination based on her disabilities (psoriasis, arthritis, including degenerative and rheumatoid-like, degenerative disc disease, including stenosis, cardiomyopathy, tachycardia, congestive heart failure, embolic cerebral vascular accident (stroke), orthopedic impairments including Baker's cyst, torn meniscus, fractures, and feet, sensitivity to certain non-incandescent artificial lighting which cause seizure like episodes, allergies, migraine headaches, compromised immune system, irritable bowel syndrome, bleeding issues, hernia, Sjogren's Syndrome),1 age (62), and reprisal for prior protected EEO activity.
In addition to the complaint form, Complainant's complaint contains a list of some 80 issues, some of which are multi-part. The list is dated June 16, 2010, and was included with her complaint papers.2 Complainant also submitted emails and other writings with her complaint giving background information on the issues, such as when in some instances things occurred. Because the complaint contains a number of identical issues, and issues which can be summarized as part of the same group, we will set forth Complainant's issues below without repeating the list of 80 issues.
Complainant alleged discrimination, including a hostile work environment, regarding:
1. workers over age 40 were targeted for discrimination by moving OAL, i.e., OAL has a significant number of attorneys over age 40;
2. the Agency in writing represented that special accommodations in the new location requiring electricity needed to be vetted through the LEED council, which violated her right to privacy and rights regarding being accommodated;
3. failure to provide reasonable accommodation on the move, i.e., getting her new identification/card key (credentials), help with packing, and transportation to the new location;
4. the lack of amenities in the new building, i.e., no restaurants, no snack bar, no vending machines with food and drink;
5. diminishment of security in the new location, e.g., use of concierge watchman rather than armed security, lack of security personnel, limited security hours, the alarm system, and inadequate exterior lightening;
6. (a) odors, required to seek medical attention for an odor on May 7, 2010, absence of air circulation, and (b) problems with air quality in the new building which injure her health, non response or denial of her request not to have her interior window cleaned to protect air quality and be advised of chemicals used, air temperature, and cut off of heating, ventilation, and air conditioning (HVAC) after regular hours and on weekends;
7. safety and health concerns about water, i.e., no water coolers permitted, tap water is filtered through piping in the refrigerator which has bacteria; quality of filtering, ice cubes are not sanitary which causes a concern with her compromised immune system, no hot water from the tap, which she needs for her disability;
8. issues raised about the quality of food in the refrigerator caused by over 100 people opening refrigerator doors for access to the filtered water spout inside the refrigerator, inadequate room in refrigerator to hold all food and beverages by employees;
9. ongoing loud noise such as hammering and drilling --- OAL is the first occupant of building;
10. an interior glass window in her assigned office exposes her to multiple sources of artificial light since the office faces an open reception area;3 Agency staff took pictures of her office;
11. no emergency evacuation plan in new building for employees with disabilities;
12. stair and hallway width and access for emergency evacuation;4
13. inadequate shelter in place plan, e.g., inadequate supplies of food and water, no plan to cut of HVAC in a chemical attack, inadequate shelter away from windows which could break in a blast; glass windows may not be shatter proof or resistant to pop out;
14. prohibited from working in the new building beyond 7 PM (apparently since May 2010);
15. no health unit in the new location;
16. instruction by Agency that employees with breathing problems in the new building are not to be transported to the health unit in the old building, rather, emergency 911 response is to be called instead;
17. designated work room for OAL staff on second floor of old building has fluorescent light;
18. lack of transportation to a hearing and conference room in the old location, where hearings and conferences are located;
19. Agency's repetitive demands for medical documentation;
20. Health Unit collecting names for disclosure release forms;
21. the new building is a greater distance from the metro subway station, and the employee shuttle service to and from the metro has limited hours, request for transport accommodation denied;
22. employee shuttle service from new to old building is limited and request for accommodation denied;
23. it is difficult to see outside the lobby at night to see the shuttle, no way of communicating with shuttle van driver to advise him employees are waiting inside the lobby;5
24. no place to sit in the lobby;
25. (a) no automatic doors to OAL and the Agency security officer refuses to assist with the OAL doors; (b) no automatic doors at the garage level, where the shuttle van comes, automatic doors in lobby are unreliable;
26. delays and issues raised by the Agency during processing of her workers' compensation claim about being unwell on May 7, 2010 as a result of air quality;
27. height and reach required by card key for elevator access; no 24-7 security to assist with card key security malfunctions;
28. denial on May 5, 2010, of her request for voice recognition software on her computer;
29. overhead cabinets are not accessible to individuals with disabilities, some printers are too high for individuals with disabilities;
30. absence of an adapted latch in the toilet stall designated for individuals with disabilities in the women's' lavatory;
31. (a) the Agency requested that she not contact the Agency Information Technology (IT) Support Center or the NOMA helpline; and (b) various problems with her computer working properly and getting help to resolve issues, e.g., problems accessing a drive and documents, problems with connectivity, and problems getting help from IT;
32. Agency delaying until June 2010, to install a desk drawer;
33. denial of working at home as a reasonable accommodation;
34. after engaging in protected activity revocation of reasonable accommodation of variable work hours;
35. payroll office debt collection unit does not have a toll free number, and Agency letter making demand for payment not readily understandable.
36. disagreeable statements made by the Agency, e.g., labeling accommodations as new because of change in location; Agency's assertions that LEED certification indicates air quality is good; Agency using excuses about LEED and building ownership requirements to deny accommodations; Agency stating automatic doors are not needed because security can open them; Agency stating people with disabilities should not use upper cabinets; Agency stating that women's lavatory meets Federal and District of Columbia requirements; and negative response to reasonable accommodation concerns as complaining; and
37. generally delays, denials and failure to provide reasonable accommodations.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant did not allege any actual present harm, i.e., was negatively impacted with her physical safety, work performance, ability to complete work assignments, ability to access her workstation, or with pay and leave. The Agency also found that none of the claims would dissuade a reasonable person from engaging protected activity, and the complaint did not rise to the level of actionable harassment.
On appeal, Complainant reiterates her claims and argues that she was harmed. Harms she lists include having to rely on others to exit and enter the premises; being required to seek assistance with the door, inability to be in the office on the weekend, illness from odors, toilet stall door pain and effort, Agency prohibition on personal means to generate hot beverages requires expenditure of physical effort, the communal galley is a risk/not an option because of her compromised immune system, and being forced to use leave because of denials of the accommodations of telework and variable hours. Complainant also alleged that the denial of accommodation caused her worry about harm.
In opposition to the appeal, the Agency reiterates the findings in the FAD. It argues that the overarching harm Complainant raises is worry and concern, which is not a harm.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The proper focus for dismissals of individual EEO complaints under 29 C.F.R. � 1614.107(a)(1) is on whether the complainant is allegedly aggrieved due to an unlawful employment practice. Cobb v. Dept. of Treasury, EEOC Request No. 05970077 (March 13, 1997). The question as to whether a complainant is allegedly aggrieved due to an unlawful employment practice for which there is a remedy under the Federal equal employment statutes, of necessity, requires a consideration of whether the complainant has alleged unlawful discrimination regarding hiring, termination, compensation, or other terms, conditions, or privileges of employment. Terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc. A complaint which alleges unlawful disparate treatment regarding a specific term, condition, or privilege of employment should not be dismissed for failure to state a claim. Id., see also Brown v. Dep't of the Treas., EEOC Request No. 05950415 (Dec. 14, 1995) (type of assignments).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Issue 1 fails to state a claim because Complainant has not shown how workers aged 40 and over would be harmed by moving to a new building two blocks away, nor can we discern any harm.
Complainant's submissions indicate that issue 2 regards her continued use of personal appliances in her office. Prior to the move, on January 7, 2010, Complainant sent a preliminary request to Agency management on accommodations she would need in the new location. She asked in part that she be able to continue to use incandescent lamps, a personal printer, fans, an air filter, her desk chair, and a foot stool. On May 5, 2010, prior to the move, the Agency's EEO Advisor/Manager responded to Complainant could take all these things to her new office.6 On these matters, Complainant has not identified any violation of privacy or denial of accommodation. Claim 2 fails to state a claim because Complainant showed no harm.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) also provides that an Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or the EEOC. Complainant filed subsequent complaint number EEO11MAL001 on October 12, 2010, alleging discrimination, in relevant part, when the Agency (a) in August 2010, failed to provide her adequate ventilation and/or fan and/or adequate means of controlling smells from the galley; (b) failed to provide her disabled access for entering and exiting it third floor facilities [OAL] at its Headquarters, (c) continued to fail to secure its Headquarters; (d) in August 2010, directed Complainant not to contact its NoMa helpline, and (e) in or about July/August 2010, directed Complainant not to contact its IT Support Center or IT offices. In Lurensky v. Federal Energy Regulatory Commission, EEOC Appeal No. 0120112989 (Oct. 24, 2011), request for reconsideration denied, EEOC Request No. 0520120123 (Mar. 26, 2012), the Commission found that issues (a) and (b) stated claims of failure to reasonably accommodate, disparate treatment and harassment, and remanded them for investigation and processing. The Commission found that issues (c), (d) and (e) failed to state a claim, reasoning that they were largely unspecific as to how Complainant's employment suffered by the Agency's actions and did not rise to the level of actionable harassment.7
Issue (a) from August 2010 onward in complaint number EEO11MAL001 is identical to issue 6(a) from in the complaint before us. Likewise, issues (b), (c), (d), and (e) in complaint number EEO11MAL001 are identical to issues 5, 25(a), and 31(a) in the complaint before us. Accordingly, issue 6(a) from August 2010 onward, and issues 5, 25(a) and 31(a) are dismissed.
In issues 3, 6(a) up to August 2010, 6(b), 7, 8, 9, 14, 23, 24, 25(b), 28, and 30, Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy, i.e., a failure to reasonably accommodate and related harassment. We add that regarding issue 9, Complainant submitted medical documentation dated April 5, 2010, that migraine headaches are precipitated by sound. Regarding issue 23, the Agency has no duty to provide Complainant transportation for commuting to and from home and work. See Saner v. United States Postal Service (Eastern Area), EEOC Appeal No. 01A13291, footnote 1 (Oct. 10, 2002). However, once a benefit is provided, there must be equal access to the benefit for protected groups, including disability. Complainant contended that she could not equally access the shuttle absent some way to know it was there when she was in the lobby. While she could wait outside, Complainant previously submitted medical documentation dated March 15, 2010, that she must avoid temperature extremes, suggesting that waiting outside may be a problem. The above issues state a claim.
Issues 4 and 15 fail to state a claim because the Agency has no duty to provide the amenities of food and beverage service or a health unit in its building as a reasonable accommodation. Similarly, we find that issue 16, which regards the services the Agency's health unit in the old building provides to employees in the new building fails to state a claim. Cf. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 37 (as revised Oct. 17, 2002) (is it not reasonable accommodation to make sure that an employee takes medication as prescribed).
We find issues 5, 11, 12, 13, 31, 32, and 35 fail to state a claim. These allegations are largely unspecific as to how Complainant's employment suffered as a result of the Agency's actions. Moreover, these allegations, even if considered with the rest of the complaint, fail to rise to the level of actionable harassment.
Issue 10 fails to state a claim because Complainant conceded the issue of light coming into her office was promptly resolved with a curtain. She has failed to show any harm with this. We also find Complainant was not harmed by Agency staff photographing her office.
Issues 17 and 18 fail to state a claim because Complainant did not raise any instances after the move where her duties have required her to work in the hearing and conference room/work room in the old building. Accordingly, she has not shown she was harmed by the lighting in the room and lack of transportation thereto. Likewise, issue 22 fails to state a claim because Complainant did not identify any instances where she was denied transportation to the old building so she could perform her duties or engage in or access some term, condition, or privilege of employment.
A review of Complainant's submissions shows that issue 19 regards the Agency's request that she submit medical documentation for any new accommodation requests. We find this fails to state a claim because the Agency is entitled to medical documentation to support new requests for reasonable accommodation where Complainant does not have an obvious disability demonstrating the need for the accommodation. Complainant in her extensive documentation does not indicate any such obvious disability. She has not shown she was harmed by the Agency asking for medical documentation to support new accommodation requests.
Issue 20 fails to state a claim because Complainant does not contend that she was required to sign a disclosure release form or that the health unit released confidential medical information without her consent.
Issue 21 fails to state a claim because the Agency is not required as form of reasonable accommodation to provide employees transportation for commuting to and from home and work. Saner.
Issue 26 regards the processing of Complainant's workers' compensation claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for her raise challenges to actions which occurred during the Office of Workers' Compensation (OWCP) process is in that proceeding itself. It is inappropriate to attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process.
Issues 27 and 29 are on the height and reach required by the card key for elevator access, no 24-7 security to assist with card key security malfunctions, overhead cabinets not being accessible to individuals with disabilities, and some printers being too high for individuals with disabilities. Complainant does not use a wheelchair and she did not contend that any of these things were too high for her to reach. Further, the supplies in the upper cabinets were managed by administrative staff and had restricted access. Complainant has not shown she was harmed in any way by the reach issues. She has also not identified any instances when she was unable to gain access to the elevator because of a card key security malfunction and no one was available to assist.
Issues 33 and 34 regard the denial of working at home as a reasonable accommodation, and revocation of the reasonable accommodation of variable work hours after engaging in EEO activity. On July 14, 2008, Complainant filed a civil action 1:08-cv-01199 in the United States District Court for the District of Columbia.8 She alleged therein that the Agency violated Title VII and the Rehabilitation Act when in 2003 it revoked her reasonable accommodations of variable work hours and working at home when needed. She reiterated her claim about denial of variable work hours in her amended civil action of May 14, 2009.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
Issues 33 and 34 are covered by the civil action, and thus are dismissed. Moreover to the extent that issue 3 on moving regards accommodating Complainant's request to arrive later, it is also dismissed.
Issue 36 is on the Agency expressing its beliefs that it was reasonably accommodating Complainant, and in one instance on the process of obtaining an accommodation. Where there is an issue about whether there was a failure to reasonably accommodate related harassment, the matter has been remanded for processing in accordance with the order below, so issue 36 is duplicative and is dismissed. Likewise, issue 37 is duplicative of the above, and is dismissed.
We find that the issues above that fail to state a claim would also not reasonably likely deter protected EEO activity.
CONCLUSION
The Agency's decision to dismiss issues 1, 2, 4, 5; 6(a) from August 2010 forward; 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 25(a), 26, 27, 29, 31, 32, 33, 34, 35, 36 and 37, as set out and numbered in this decision is AFFIRMED. The Agency's decision to dismiss issues 3;9 6(a) up through September 2010; 6(b), 7, 8, 9, 14, 23, 24, 25(b), 28 and 30 as set out and numbered in this decision is REVERSED. The Agency shall comply with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 12, 2012
__________________
Date
1 This list of disabilities takes into account Complainant's clarifying information on appeal.
2 In defining the complaint, the Agency used an earlier list of 60 issues. On appeal, Complainant notes this was the wrong list.
3 In an email dated May 24, 2010, Complainant wrote this problem was resolved with a curtain.
4 This does not refer to door access, as Complainant wrote stairwell doors have been reported as left open;
5 Complainant wrote Agency employees have been instructed to wait outside despite no security.
6 Complainant did not raise bringing an appliance to make hot beverages.
7 The issues above mirror the language in the EEOC's decision. A review of the record shows that the EEOC's reference to "Headquarters" referred to the location OAL moved to in May 2010.
8 The civil action complaint was filed under seal. A copy of the civil action complaint is in the record of Lurensky v. Federal Energy Regulatory Commission, EEOC Appeal No. 0120092524. The Court's electronic indicates that as of April 10, 2012, the civil action was still pending.
9 To the extent that issue 3 on moving regards accommodating Complainant's request to arrive later, it is dismissed.
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0120113822
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113822